People ex rel. Lyon v. Wallin, 125 N.Y.S. 613

People ex rel. Lyon v. Wallin

125 N.Y.S. 613 | N.Y. App. Div. | 1910

Per Curiam: :

Pursuant to constitutional authority (Art..6, § 17) the Legislature has prescribed that town -meetings whereat officers,, including'jus-' tices of the peace, are elected, shall-be held biennially. . (Town Law,. §§ 40,. 43, 80.) Such designation is in effect expressly pro-1 hiffitive against a choice at any other -election. (People ex rel. Smith v. Schiellein, 95 N. Y. 124.) It appears that the1 biennial town meeting of the town of Pelham occurs in 1911. Even conceding then, for argument’s sake, that there will be a vacancy in an office of a justice of tlie peace in that town on the thirty-first of December next, which cannot be filled by an election, so that there would be an elected justice of the peace in occupation of that' office ; on the first of January next, that condition doe's not justify an election at any place or time other than that prescribed by existing law. (People ex rel. Fowler v. Bull, 46 N. Y. 57; Matter of Schultes, 33 App. Div. 524.) People ex rel. Howard v. Suprs. of Erie (42 App. Div. 510; affd. on opinion below, 160 N. Y. 687) does not con-. tfol. That case' Concerned the title to the office of supervisor after an election had been held therefor in an even-numberéd year. It was decided that an election could be held in such a year to fill the vacancy in that office, inasmuch as that clause'of the Constitution which provided that all elections of city officers, including the office in question, should be held on.the Tuesday succeeding the first Monday in November in an odd-numbered year expressly excepted elections to fill vacancies. (Art. 12, § 3.) This clause must be read in connection with article 10, section 5, of the Constitution, to the *35effect that no person appointed to fill a vacancy in an elective office “ shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening .of the vacancy.” The provision of the charter of the city of Buffalo which attempted to continue the term of such appointed officer to the end of an odd-numbered year was under the circumstances then disclosed in violation of that constitutional provision and void. But the question of general.statutory authority to hold the election in November, 1898, in the absence of this void provision of the charter was conceded, or, if not, was neither raised nor considered. The case at bar concerns an attempt to elect a constitutional officer at a time other than that prescribed by the Legislature under constitutional authority.

The order is reversed, without costs.

• Jenks, Burr, Thomas and Carr, JJ., concurred.

Order reversed, without costs, and motion denied, without costs.